Khap system and human rights in India

April 20, 2018

Photo: The Hindu

By Mujeebu Rahman K.C.

The latest Indian Supreme Court judgment to curb Khap system and the following agitation from the local groups bring to attention once again the complicated debates of relativism and universalism in defining human rights.

While the universalistic perspective of rights proposes an idea of ordering the multiple hierarchical cultural setting into a universal cosmopolitan structure by locating all of them under one umbrella of human rights, relativists give absolute priority to local and regional ethical autonomy and self-determination. Although the universality of human rights is still widely accepted by many nations, the influence of cultural relativism undermines the system of international human rights treaties.

It was the Universal Declaration of Human Rights (UDHR) and the followed covenants which changed the entire history of human rights. Until the declaration, the protection of human rights of individuals was seen as a sovereign prerogative of the state and therefore as a domestic rather than as international concern. Thus, since there is always concern of violation of human rights based on caste, color, culture, and religion in different parts of the world, the universal declaration had always a great impact on the world of human rights. However, there was always a debate surrounding the applicability of the universal idea of human rights with respect to whether the declarations and covenants should be considered obligatory. The origin of this debate is premised upon two philosophical blocks in human rights: universalism and cultural relativism.

Universalism is the philosophical premise of all these international human rights documents and covenants. Therefore, international human rights regime is a universalistic conception by its nature. All those different documents and covenants under United Nations underline this fact, as it is arguably designed and available to all people irrespective of their different belongingness and identities. Thus, human rights are represented as a set of values that achieved the global consensus for protecting the dignity of humankind. The bench of Justice Dipak Misra, AM Khanwilker, and DY Chandrachud slammed Khap and asserted the right to life and liberty and safeguards for basic rights and equality, based on the universal idea of human rights.

However, various Khaps and caste panchayats of Uttar Pradesh opposed the ruling, saying that this is an interference in the cultural and religious matters which cannot be compromised. According to them, sagotra marriage is not permissible according to the Hindu scriptures. The basic tenets of cultural relativism are as follows: there is a significant degree of diversity in norms, values, and belief across cultures and historical periods. If we were to agree with this argument, there are no universal criteria for adjudicating between differing world-views. So, the concept of human rights is very subjective, since that is based on values and ideologies informed by the notion of what is good and what is evil in human actions. Human rights therefore not only engage just with the law but also with philosophy, culture, and religion.

Nevertheless, the Supreme Court of India categorically mentioned that “parties shall take the necessary legislative or other measures to ensure that, in criminal proceedings initiated following the commission of any of the acts of violence covered by the scope of this Convention, culture, custom, religion, tradition or so-called “honour” shall not be regarded as justification for such acts. This covers, in particular, claims that the victim has transgressed cultural, religious, social or traditional norms or customs of appropriate behaviour.”

When human right is viewed from a universalist perspective, relativism seems unsustainable in the modern world, as even the most remote indigenous groups have been sustainably integrated into global politics, culture, and economy and are subject to ever-growing external influences. I am not sure to what extent the philosophical debates around universalism and relativism will help to reconcile the tension in human rights concerns. Instead, it seems to create two extreme diverse philosophical stands which make the concerned issue more complex as it deviates from the crux of the debate: how to well reconcile the issue, especially when it comes to sensitive matters. Also, this philosophical debate does not help to form parameters based on which the cases can be analysed; rather, the stands seem highly politicised based on the context of the cases. So, both the stands have a complicated relationship with each other.

There has been adaptations and alteration in all cultures and traditions. Of course, there are some parts of culture which have persisted for the long term, but relativists are only focused on those parts. There is the possibility that the dominant groups in society might have used its repressive apparatus in forcefully dominating the cultural setting by their perceptions and interpretations of cultural values. Consequently, their existing culture might have resulted in the interest of dominant classes. In such cases, it is very complicated to decide which customs should be considered as the representative of a given culture. However, it should also be noted that an emphasis on a universal approach to human rights should not completely eradicate indigenous cultures.

Bio:Mujeebu Rahman K.C. is a graduate student at the Indian Institute of Technology Gandhinagar (IITGN), India.